Berenson, S K --- "A Primer for New Civil Law Clinic Students" [2007] LegEdDig 40; (2007) 15(3) Legal Education Digest 5
A Primer for New Civil Law Clinic Students
[2007] LegEdDig 40; (2007) 15(3) Legal Education Digest 5
Thom Jeff S L, Pub L & Leg Th Research P S, Paper No. 1026630, 2007, pp 603-626
The focus of this primer is on ‘in-house’ clinics, where supervision and review of students’ case work is conducted within the law school by law school teachers, as opposed to outside of the law school by practitioners. Similarly, the focus of this primer is on civil legal aid and law school clinics rather than on representation of indigents in criminal cases.
Most people identify the beginning of the delivery of free legal services to poor people in America with the year 1876, when the German Society of New York incorporated an entity ‘to render legal aid and assistance gratuitously to those of German birth who may appear worthy thereof, but who from poverty are unable to procure it.’ In 1890, however, the organisation amended its constitution to allow the delivery of legal services to all people, regardless of their national origin, and the organisation became known simply as the New York Legal Aid Society. By this time, a similar organisation, called the Bureau of Justice, was formed in Chicago with a similar mandate to provide legal assistance to needy people without regard to race, gender, or nationality. Such organisations did not seek out particular types of cases or clients. Rather, the legal needs of those who sought their services determined their work. These needs tended to cluster in the areas of domestic relations, wage disputes, and contract disputes.
Over the next three decades, organisations similar to those in New York and Chicago began to crop up around the country. By 1919, forty-one such organisations existed in thirty-seven cities throughout the United States. Despite this growth, much work remained to be done to remedy the lack of access to justice by poor people in America.
As to the former, two World Wars and the Great Depression understandably and greatly inhibited the growth of legal aid programs during those periods. Nonetheless, by the end of 1949, there were ninety-two legal aid offices engaged in civil legal work in the U.S., though seventeen of these were staffed solely by volunteer lawyers.
The next major expansion in the availability of legal services for poor people in America came in the early 1960s. In the first years of the decade, private foundations, such as the Ford Foundation, made resources available to support the delivery of legal services in the context of multiservice social agencies, which were far broader in scope than traditional legal aid programs. Then in 1964, as part of President Johnson’s ‘war on poverty,’ Congress passed the Economic Opportunity Act, which created the Office of Economic Opportunity (OEO). Though the original Act contained no separate provision for funding legal services, by the following year, a combination of support from the leadership of the OEO and the American Bar Association (ABA), along with the implicit support of the President and Congress, resulted in the creation of the OEO Legal Services Program (LSP). That program is the direct precursor of today’s federal Legal Services Corporation (LSC), which was established by Congress in 1974. The initial budget of the OEO LSP was USD$25 million, and by the end of 1966 the program had provided 130 different grants. Yet even at this early stage, those involved with the program debated how best to use the entity’s limited resources. Some advocated for the individual, client-by-client approach that had dominated earlier legal aid practice. However, others argued that in order to maximise the impact of the program’s effectiveness for its poor clients, broader efforts needed to be undertaken to reform the laws, programs, and procedures that contributed to the stubborn presence of poverty in America. Among the techniques advocated by the latter group was ‘test case,’ or ‘impact’ litigation, modeled on the National Association for the Advancement of Colored Persons (NAACP) Legal Defense Fund’s campaign against segregated schools, and the American Civil Liberties Union’s (ACLU) law reform suits. The latter group also advocated engaging in lobby activities to influence the content of legislation. Some of the OEO LSP grants during this period went to fund ‘back up centres,’ which were exclusively focused on either conducting or supporting large-scale law reform suits, while local legal aid and ‘storefront’ offices continued to handle the bulk of the individual cases funded by the program. A third approach also emerged, which focused on organising, educating, and empowering the client community served by the program.
Not surprisingly, the more aggressive law reform efforts of the program resulted in a political backlash.
One positive development to result from the restrictions that affected the federal legal services program during the 1980s and 1990s was the rise of additional or alternative sources of funding and programs to support the delivery of legal services to poor people. One such common source came from Interest on Lawyer Trust Account (IOLTA) programs. Pursuant to such programs, lawyers are required by applicable state bar authorities to keep client funds in interest bearing accounts, with the interest to be used to fund legal services programs for poor people.
In addition to IOLTA programs, a wide range of programs supported by bar associations, state ‘access to justice’ commissions, law schools, and private foundations, have stepped into the breach created by retrenchments in funding to, and restrictions on the practice of, federally funded legal services programs.
Despite this vast array of legal services providers for the poor, the overall amount of legal services available still falls far short of meeting the needs of the poor for legal services. The most recent national assessment of the legal needs of the poor was the ABA’s 1994 Comprehensive Legal Needs Study. This study determined that approximately eighty percent of poor Americans do not have the assistance of an attorney when they are faced with a serious situation where the aid of an attorney might make a difference.
Along with other reasons, this gap between the legal needs of the poor and available legal resources has led to a great expansion in the number of self-represented litigants in our nation’s various court systems. In an effort to address the burdens created by this increase in self-representation, and in their typical manner of trying to squeeze maximum benefit out of limited resources, legal services providers have begun offering a variety of forms of limited legal assistance to poor people. These limited legal assistance programs are designed to provide help and support to such people who, nonetheless, will continue to represent themselves with regard to their particular legal needs. Such assistance can take a wide variety of forms including self-help classes, telephone hotlines, and assistance in preparing standard court forms and other legal documents. In fact, it seems that the fastest area of growth in legal services programs in the new century has been the proliferation of limited legal assistance programs.
Perhaps not surprisingly, there is a rough correlation between important dates in the development of civil legal aid in America and important dates in the development of clinical legal education. For example, just as the origins of the modern legal aid office can be traced to the founding of the New York Legal Aid Society in the late Nineteenth Century, most historians locate the first law school clinical program in a ‘legal dispensary’ operated by students at the University of Pennsylvania School of Law in 1893.
The first for-credit, law school clinical programs that approximated the model used presently by in-house clinical programs appeared in the late 1920s and early 1930s.
As had been the case with the growth in the 1960s of legal aid programs, a combination of the ‘zeitgeist’ of the 1960s, along with the financial support of entities such as the Ford Foundation, led to an exponential growth in law school clinical programs during that decade. In 1958, the Ford Foundation provided a grant of USD$800,000 to the National Legal Aid and Defender Association (NLADA) to establish a National Council on Legal Clinics (NCLC) to provide grants to law schools to establish clinical legal education programs. This manner of providing resources to law schools through NLADA provided additional enhancement to the already existing connections between legal aid programs and clinical legal education.
The Ford Foundation was pleased enough with its initial foray into clinical legal education that it provided an additional USD$950,000 in funds in 1965. This time, the money went to a successor entity of NCLC called the Council on Education in Professional Responsibility, which was later renamed the Council on Legal Education for Professional Responsibility (CLEPR). The acronym CLEPR became well known in clinical legal education circles and, indeed, an important part of the movement’s lore. By the time it concluded its existence in 1978, CLEPR had provided more than USD$6,500,000 in grants to more than 100 law schools. At this juncture, clinical legal education was firmly rooted throughout the legal academy.
Consistent with clinical legal education’s connections to legal aid in the early 1960s, the focus of most of the clinical education programs developed at that time was in the same areas where most legal aid offices focused their attention then: landlord-tenant issues, domestic relations matters, and public assistance cases. This continued to be the case into the 1970s. Some clinics also mirrored the focus on ‘impact litigation’ at this time, in areas such as civil rights, consumer rights, environmental rights, and poverty rights. However, at present, the subject matter of clinical course offerings has expanded to encompass nearly the entire range of legal practice areas. Law schools presently offer clinics in fields including alternative dispute resolution, criminal prosecution and defense, securities arbitration, community economic development, health law and policy, and U.S. Supreme Court litigation. A small number of schools have even experimented with commercial, fee-for-service clinics. The range of externship programs offered by law schools has grown exponentially alongside the expansion of in-house clinical course offerings. Moreover, externship pedagogy has matured into a deep and sophisticated discipline, as has been the case with the pedagogy of in-house clinical teaching.
What seems clear is that few students today will graduate law school without any exposure at all to the skills, values, and contexts that shape the actual practice of law, as was too often the case in the past.
As a result of their intertwined and overlapping histories, many of the primary issues that arose and continue to present themselves in the legal aid context have analogues in the clinical legal education context. Though sometimes the issues appear somewhat differently in each context, and sometimes they diverge altogether, the connections are sufficient to warrant common discussion.
By the late 1960s, at least among the leading figures in the legal aid movement, it appears that sentiment was running in favour of the impact litigation approach. This focus on ‘test case’ litigation yielded many encouraging results. For example, though no legal aid staff attorney had taken a case to the U.S. Supreme Court prior to 1967, between 1967 and 1972, legal services program staff lawyers presented 219 cases to the High Court, of which were decided on the merits, resulting in seventy-three victories for the legal services lawyers and their clients.
Though the so-called individual versus impact debate has not played as dominant a role in the law school clinic context as it has in the legal services context, law school clinics and their advocates have, nonetheless, paid significant attention to the question of the appropriate form of representation to pursue in such clinics. Given most modern clinics’ origin in the legal aid offices of the late 1950s and early 1960s, it is not surprising that the initial focus and ultimately the ‘default’ approach of such clinics has been individual representation. Moreover, individual representation cases present pedagogical advantages as well. The advantages of an individual representation case are that it offers a student the greatest possibility of seeing a case from start to finish over the course of the student’s time in the clinic, and it gives the student a sense of ‘ownership’ over cases that results from the student being competent to handle most, if not all, of the lawyering tasks required by the case.
However, law school clinics undeniably have a social justice mission, as well as a mission to educate students. To the extent that one views impact litigation as better suited to improving the conditions of larger numbers of poor clients, one is also likely to view such cases as better serving law school clinics’ social justice mission than individual case representation. Moreover, larger scale cases may better engage both clinic students and faculty than smaller scale ones, due to the relative complexity of the issues involved and the quality of opposing counsel. On the other hand, larger scale cases may strain clinic resources in a variety of ways, may result in a shift in case work and responsibility from students to faculty, and may involve the clinic in political controversy.
Moreover, the individual versus impact question is beside the point in the fast growing range of transactional clinics available at law schools. However, at least some clinic students and faculty must still face the question in the context in which they work. Therefore, clinic student familiarity with the questions and trade-offs involved remains valuable.
Though the current trend toward limited legal assistance perhaps represents a vote in favour of quantity of representation over quality of representation, critics of limited legal assistance for poor people have recently begun to question whether such services provide even a minimal qualitative level of assistance that would justify the provision of services in such a form.
Additionally, the quality versus quantity issue has long been present in clinical legal education in the form of questions regarding student caseloads. On the one hand, some advocate limiting clinic student workloads to an extremely small number of cases. This allows students to take all the time and make whatever efforts are necessary to handle their cases properly. On the other hand, some suggest that artificially low case loads fail to give students a realistic sense of the pressures of actual legal practice, whether in a legal services or private practice context, and therefore fail to compel students to develop the time and case management skills necessary to succeed in modern law practice. Presently, most clinics operate somewhere in the middle of this spectrum, providing students with enough cases to simulate ‘real world’ pressures, while at the same time not overwhelming students or forcing them to take shortcuts in representation that will result in the development of bad habits for the students and poor representation for the clients.
As the above-described history of legal aid points out, at least since the late 1960s, when the legal aid program became more ambitious in terms of both its size and the objectives of its litigation strategies, a political backlash has resulted in severe limitations on the program’s budget as well as substantive restrictions on the scope of legal services practice. Given the overlapping objectives between law school clinics and the legal services program, it should not be surprising that the work of law school clinics has engendered political opposition as well.
Clinics at public law schools, such as that of the University of North Dakota, are particularly vulnerable to political interference because they may be dependent for their funding on the very public officials whose actions may be challenged by the clinic. However, public controversy and political interference are possible in virtually any legal clinic setting, and student attorneys should be prepared for such possibilities.
As mentioned earlier, the handful of clinical programs that existed in the United States in the late 1950s have grown exponentially in the intervening years. Now almost all of the 190 ABA approved law schools have at least one clinic, and many of them have multiple clinics. Additionally, the vast majority of faculty hiring by law schools in recent decades has been in the areas of clinical legal education and other legal skills training.
It is tempting to conclude from the past three decades of contrasting growth in clinical education and the retraction of legal services over the same period that the period has been one of largess for clinical legal education compared to one of privation for civil legal services. However, before that conclusion can be drawn, one must look more closely at the somewhat precarious financial situation that characterises clinical legal education. Despite the above-described growth in clinical legal education, it is still the case that the overwhelming majority of American legal education takes place in the traditional classroom setting, and a relatively small proportion of overall law school budgets are used to fund clinical programs. Moreover, critics constantly point to the relatively high cost of in-house clinical programs versus traditional law school classes. Given rapid increases in the overall cost of legal education in recent years, and the corresponding increase in graduating student debt loads, it is hard to imagine that law schools will continue to increase significantly funding for clinical legal education in the near future.
It has always been the case that legal aid practitioners have enjoyed relatively low status within the bar as a whole. Sociologists of the legal profession have demonstrated that the greatest status divide within the profession is between those lawyers who serve entities, such as business organisations, and those who serve individual clients, with the former being accorded significantly higher prestige than the latter. However, even within the less prestigious category of lawyers who serve individual clients, there are further hierarchies of prestige based upon the relative affluence of the individual client.
There were additional status hierarchies within the legal aid movement as well, along the lines of the individual versus impact distinction discussed above. Because impact work was viewed by many as being more intellectually challenging than individual case representation, higher status was accorded to legal aid lawyers who worked on impact cases than to those who worked on individual cases.
Given this history of relative subordinate status for clinical legal education within the academy, as well as the above-discussed issues regarding the prestige of poverty law work generally, it should not be surprising that some current clinic students will face questions regarding the value of their participation in the clinical legal education enterprise. While clinic students will no doubt conclude in relatively short order that the work performed in law school clinics can be as complex, challenging, and rewarding as any legal work that can be performed, they should be prepared to deal with such questions.
Hopefully, this primer can serve as something of a reference point as you navigate your way through the many issues and challenges that you will confront in your work in the clinic. In any event, bear in mind that the work you do in the clinic will later become part of the rich tradition and history that is described above.